Warning Sign near Crow Butte in Nebraska. Uranium ISL processes pictured here poison the Oglala and 3 other Aquifers with Arsenic, Radium and other heavy metals.

The planned uranium mine site in the southern Black Hills can impact four aquifers. Powertech, Inc. USA plans to begin uranium extraction in 2011 and operate for 15 years in the permit area of 10,580 acres located in Dewey and Burdock Counties, north of Edgemont, SD. PT plans to drill 4000-8000 wells to a depth of 400-800 feet underground to extract 1 million pounds uranium per year, initially using 4000 gallons of water per minute. As well as the four aquifers in this area, the site includes the surface water of Beaver Creek and Pass Creek, which empty into the Cheyenne River downstream from the mine site. To permanently store the mining waste of radioactive water and sludge, PT plans to use several evaporation ponds and deep disposal wells. Thirty-eight people currently live within a 6 mile radius of the proposed mine, with a cattle ranch nearby that raises beef for sale as food. PT plans to locate its’ processing plant in the Burdock area. Once this area is mined out sometime around the year 2026, PT plans to continue to use the area as a yellow cake processing site for uranium extracted from its mines in Wyoming and Colorado, according to PT’s Environmental Protection Agency Aquifer Exemption Application.

Who Is Powertech, Inc. USA?

Powertech, Inc. (PT) is a recently formed, foreign-owned uranium exploration corporation from Vancouver, BC, Canada with an office in Denver, CO and Hot Springs, SD. (PT’s parent company is Suez, the giant French-owned

multinational corporation.) PT also has ISL mining plans for Wyoming and currently is in the permitting process for ISL uranium mines in both South Dakota and Colorado. PT has completed exploratory drilling in the Dewey-Burdock uranium mine permit areas, which straddles Fall River and Custer counties 12 miles northwest of Edgemont. PT utilized several thousand drill holes made by the Tennessee Valley Authority (TVA) 20-30 years ago when TVA explored and mined the area. From 1951 to 1964, TVA produced 1,500,025 pounds of yellow cake from this uranium deposit. TVA left many uranium drill holes uncapped and abandoned when they left the Black Hills. TVA sold their claims when the Three Mile Island Nuclear Power Plant approached a melt-down, and the horror of Chernobyl happened. PT acquired the property in the Edgemont area in 2005. PT is also preparing to mine uranium southeast of Edgemont in the Plum Creek area.

How Will the Miners Get the Uranium Out of the Ground?

ISL Mining is a method used to extract uranium ore from underground, using water to inject solutions deep into the uranium ore body through injection wells, then the ‘production well’ pulls up the injected solution with the uranium ore attached. The piping is placed in drill holes which puncture the aquifers. From these pipes, the uranium ore enters the production plant, the solution and dirt debris is shaken off, and the remaining uranium ore is dried to turn the it into a fine powder called “yellow cake”. It is necessary to drill thousands of holes deep in the ground to conduct ISL mining. Arsenic, Radium 226 & 228, Thorium 230 and other contaminants are stirred up during the extraction process and can enter groundwater through leaks in the thousands of pipes used to ISL mine. Such leaks can allow the radioactive water to seep out of the pipe and back into the groundwater, which has happened at ISL mines all over the world. (for info see www.wise-uranium.com ). Water that is used to extract the uranium ore out of the ground is re-used to repeat the extraction process, some of this water is then stored in evaporation ponds, along with the sludge of the contaminants, some is stored permanently underground in disposal wells. The sludge is shipped out as radioactive waste. No corporation has ever been able to clean up the aquifers of an ISL uranium mine site, rather, the state or EPA will relax its water standards.

Water Pollution A Major Concern In SD

Environmental and conservation groups, including the Sierra Club of SD, warn that water pollution will be a major concern if the mining company Powertech is given a permit to mine for uranium. Shirley Frederick, with the Sierra Club’s Black Hills Group, says there’s a high likelihood that aquifers will become polluted if an injection-well recovery system is used to mine the ore. “It’s a huge potential for contamination of groundwater.”

Powertech Inc USA has submitted its uranium mining application to the Nuclear Regulatory Commission and it can be viewed at the NRC website. The NRC has announced a time period for interested individuals to voice their concerns regarding the uranium mine’s impacts to the environment. This proposed uranium mine will be the first time folks can be heard under the new GEIS.

By Peter d’Errico

July 26, 2009

It’s a bad sign when a Supreme Court justice disrespects a young Indian woman, Nazune Menka, when asked about the Carcieri v. Salazar decision against the Narragansett Nation, and worse when the justice mocks the case itself, calling it “a laugher.” Aside from what CBS News calls Scalia’s “nasty” style, what allows him to show such mockery and disrespect?

Justice Antonin Scalia, a man who believes ‘conquered’ Indians have no rights.

There’s a clue in what Scalia apparently said to another Indian questioner. He claimed the U.S. has a right to rule over Indian nations by “conquest” and all federal Indian law is based on that. In other words, Scalia wants to pretend the same thing the U.S. has been pretending since John Marshall first pretended it in 1823 in Johnson v. McIntosh: the “pretension of converting the discovery of an inhabited country into conquest.”

The actual basis of federal Indian law, as Marshall’s quote shows, is not conquest, but “pretense of conquest,” based on “Christian Discovery” and “ultimate dominion.” This is what Scalia’s comment covers up. Marshall, at least, had the honesty to call it what it was.

Justice John Marshall, who put forth the “pretension of converting the discovery of an inhabited country into conquest.”

An Indian Country Today interviewer (May 6) asked John Echohawk, executive director of the Native American Rights Fund, “Is anyone challenging Congress’ claim to plenary power over the nations?” He replied: “Yes, but of course under the law of this country, the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations and that’s just the way things are and you go to court and that’s what they’ll tell you.”

The increasing awareness in Indian country that federal Indian law is not really for Indians is a wake-up call to Indian lawyers and ‘respected authorities’ to dispel the indoctrination of federal Indian law precedents.

NARF’s acceptance of the “pretense of conquest” as “that’s the way it is” is an ominous sign. It means the most widely recognized group of Indian lawyers is not arguing against the basic discrimination in federal Indian law. No wonder Justice Scalia thinks he can get away with his nastiness and pretense.

Indian country needs to strip away the “pretense of conquest” and reveal the underlying reality of federal Indian law: a system designed to suppress sovereignty of Indian nations in keeping with a tradition of Papal Bulls and Christian political theology. Indian country needs lawyers not afraid to argue for indigenous sovereignty and against the “pretense of conquest through discovery.”

Echohawk demonstrated that NARF is not one of the challengers of pretense when he continued, “the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period.”

The culture of acceptance of the pretense of federal Indian law prevails not only at NARF, but also in law schools, even in Indian law programs. The standard approach seems to be to train young lawyers to accept the existing paradigm, rather than question it. The standard approach produces arguments acceptable to judges like Scalia, rather than challenge the discriminatory basis of federal Indian law.

NARF’s acceptance of the ‘pretense of conquest’ as ‘that’s the way it is’ is an ominous sign.

The motivation to fit in has not hampered advocates in other fields. Civil rights lawyers challenged racist precedents dating from slavery and won historic legal change in the middle of the 20th century. It’s been more than 50 years since the historic decision, Brown v. Board of Education, overturned the doctrine of “separate but equal.” Meanwhile, federal Indian law is still bound by racist theological precedents.

The federal government’s “trustee” status is being keenly studied across Indian country since the Carcieri and Navajo decisions. What are Indian lawyers waiting for? Have they given up and are merely trying to play by racist rules that give Congress “plenary power” over Indian Nations? They should be crafting every possible argument to overturn that racist doctrine.

Let’s take a look at what the Supreme Court says about when it’s time to overrule a precedent. In Vasquez v. Hillery (1986), the court said it will overturn a precedent that is “outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.” That set of terms exactly describes the doctrine of “pretense of conquest by discovery.”

“Pretense of conquest by Christian Discovery” is “outdated”: a decision from 1823. It is “ill-founded”: based on racist and religious discrimination. It is “unworkable” as a basis for Native sovereignty. As Steve Newcomb’s book, “Pagans in the Promised Land,” shows it is “legitimately vulnerable to serious reconsideration.”

In Leegin v. PSKS, Inc. (2007), the Supreme Court overturned an anti-trust precedent, saying the old rule had been “called into serious question” and that “respected authorities” suggested the rule “is inappropriate.” If corporate lawyers and “respected authorities” had gone along with the old rule instead of arguing against it, the court would not have overturned it.

In an ICT column last September, Charles Trimble wrote, “history must be taught with accuracy and dispassion, as history and not as indoctrination.” The same applies to law.

Law is based on argument. The common law system depends on argument. An advocate has the chance to challenge the status quo. The increasing awareness in Indian country that federal Indian law is not really for Indians is a wake-up call to Indian lawyers and “respected authorities” to dispel the indoctrination of federal Indian law precedents.

No more should anyone say that “plenary power” is just “the way it is.” No more should anyone be afraid to tell a court that the “pretense of conquest by discovery” is “outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.”

As the court said in the Leegin case, “the common law adapts to modern understanding and greater experience.” The point we must remember – and teach our law students – is that the common law only adapts when it is pushed by understanding and experience – pushed by advocates for change.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968 – 1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970 – 2002. He currently serves as a consulting attorney on indigenous issues.